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discharge him from the custody of the Ida- | visions referred to were based upon the ho agent, and prevent his deportation from theory that, as between the states, the Colorado. Robb v. Connolly, 111 U. S. 624, proper place for the inquiry into the ques639, 28 L. ed. 542, 547, 4 Sup. Ct. Rep. 544; tion of the guilt or innocence of an alleged Ex parte Reggel, supra; Hyatt v. New York, fugitive from justice is in the courts of the 188 U. S. 691, 719, 47 L. ed. 657, 664, 23 state where the offense is charged to have Sup. Ct. Rep. 456; Munsey v. Clough, 196 been committed. The question, therefore, in U. S. 364, 374, 49 L. ed. 515, 517, 25 Sup. the court below, was not whether the acCt. Rep. 282. But it was not shown by cused was guilty or innocent, but whether proof before the governor of Colorado that the Idaho court could properly be prevented the petitioner, alleged in the requisition from proceeding in the trial of that issue, papers to be a fugitive from justice, was not upon proof being made in the circuit court one, nor was the jurisdiction of any court of the United States, sitting in that state, sitting in that state invoked to prevent his that the petitioner was not a fugitive from being taken out of the state and carried to justice, and not liable, in virtue of the ConIdaho. That he had no reasonable opportu-stitution and laws of the United States, to nity to present these facts before being taken arrest in Colorado under the warrant of its from Colorado constitutes no legal reason governor, and carried into Idaho. As the why he should be discharged from the cus- petitioner is within the jurisdiction of Idatody of the Idaho authorities. No obliga-ho, and is held by its authorities for trial, tion was imposed by the Constitution or are the particular methods by which he was laws of the United States upon the agent of brought within her limits at all material in Idaho to so time tha arrest of the petition, the proceeding by habeas corpus ? er, and so conduct his deportation from Col- It is contended by the state that this orado, as to afford him a convenient oppor. question was determined in its favor by the tunity, before some judicial tribunal sitting former decisions of this court. This is conin Colorado, to test the question whether he troverted by the petitioner, and we must was a fugitive from justice, and, as such, therefore, and particularly because of the liable, under the act of Congress, to be con unusual character of this case and the im. vayed to Idaho for trial there. In England, portance of the questions involved, see what in the case of one arrested for the purpose this court has heretofore adjudged. of deporting him to another country, it is In Ker v. Illinois, 119 U. S. 436, 30 L. ed. provided that there shall be no surrender of 421, 7 Sup. Ct. Rep. 225, it appeared that at the accused to the demanding country until the trial in an Illinois court of a person after the expiration of a specified time from charged with having committed a crime the arrest, during which period the prisoner against the laws of that state, the accused has an opportunity to institute habeas cor-sought, by plea in abatement, to defeat the pus proceedings. Extradition Act of 1870, 33 jurisdiction of the court upon the ground and 34 Vict. chap. 52, § 11; 2 Butler, Treaty. that, in violation of law, he had been seized Making Power, $ 436; 1 Moore, Extradition, in Peru, and forcibly brought against his 741, 742. There is no similar act of Congress will into the United States, and delivered to in respect of a person arrested in one of the the authorities of Illinois; all of which the states of the Union as a fugitive from the accused contended was in violation, not only justice of another state. The speediness, of due process of law, as guaranteed by the therefore, with which the Idaho agent re- 14th Amendment, but of the treaty between moved the accused from Colorado, cannot be the United States and Peru, negotiated in urged as a violation of a constitutional right, 1870, and proclaimed in 1874. One of the and constitutes no legal reason for dischar- articles of that treaty bound the contract. ging him from the custody of the state of ing countries, upon a requisition by either Idaho.

country, to deliver up to justice persons We come now to inquire whether the peti- who, being accused or convicted of certain tioner was entitled to his discharge upon named crimes committed within th: jurismaking proof in the circuit court of the diction of the requiring party, should seek United States, sitting in Idaho, that he was an asylum or should be found within the brought into that state as a fugitive from territories of the other, the fact of the comjustice when he was not, in fact, such a mission being so established "as that the fugitive. Of course, it cannot be contended laws of the country in which the fugitiva that the circuit court, sitting in Idaho, could or the person so accused shall be found rightfully discharge the petitioner upon would justify his or her apprehension and proof simply that he did not commit the commitment for trial if the crime had been crime of murder charged against him. His there committed.” 18 Stat. at L. 719, 720. guilt or innocence of that charge is within the plea stated, among other things, that the the exclusive jurisdiction of the Idaho state defendant protested against his arrest, and court. The constitutional and statutory pro. was refused opportunity, from the time of his being seized in Peru until he was deliv-, to demand and insist upon security in such ered to the authorities of Illinois, of com. an asylum. The treaty, so far as it regumunicating with any person, or seeking any lates the right of asylum at all, is intended advice or assistance, in regard to procuring to limit this right in the case of one who is his release by legal process or otherwise. proved to be a criminal fleeing from justice,

The court overruled the plea of abate- so that, on proper demand and proceedings ment, and the trial in the state court pro- had therein, tha government of the country ceeded, resulting in a verdict of guilty. The of the asylum shall deliver him up to the judgment was affirmed by the supreme court country where the crime was committed. of Illinois, and this court affirmed, upon And to this extent, and to this alone, the writ of error, the judgment of the latter treaty does regulate or impose a restriction court. It was held by the unanimous judg- upon the right of the government of the ment of this court that, so far as any ques-country of the asylum to protect the crimition of Federal right was involved, no error nal from removal therefrom.

We was committed by the state court; and that, think it very clear, therefore, that, in innotwithstanding the illegal methods pur-voking the jurisdiction of this court upon sued in bringing the accused within the the ground that the prisoner was denied a jurisdiction of Illinois, his trial in the state right conferred upon him by a treaty of the court did not involve a violation of the due United States, he has failed to establish the process clause of the Constitution, nor any existence of any such right.” article in the treaty with Peru, although the If Ker, by virtue of the treaty with Peru, case was a clear one "of kidnapping within and because of his forcible and illegal abthe dominion of Peru, without any pretense duction from that country, did not acquire of authority under the treaty or from the an exemption from the criminal process of government of the United States.” The the courts of Illinois, whose laws he had vioprinciple upon which the judgment rested lated, it is difficult to see how Pettibone acwas that, when a criminal is brought, or quired, by virtue of the Constitution and is in fact within the jurisdiction and cus-laws of the United States, an exemption tody of a state, charged with a crime against from prosecution by the state of Idaho, its laws, the state may, so far as the Con- which has custody of his person. stitution and laws of the United States are An instructive case on this subject is concerned, proceed against him for that Mahon v. Justice, 127 U. S. 700, 32 L. ed. 283, crime, and need not inquire as to the par- 8 Sup. Ct. Rep. 1204. The governor of Kenticular methods employed to bring him tucky made a requisition upon the governor into the state. The case, the court said, of West Virginia for Mahon, who was "does' not stand, when the party is in charged with the crime of murder in Kencourt, and required to plead to an indict- tucky, and was alleged to have fled from its ment, as it would have stood upon a writ of jurisdiction and taken refuge in West Virhabeas corpus in California, or in any state ginia. While the two governors were in through which he was carried in the progress correspondence on the subject, a body of of this extradition, to test the authority by armed men, without warrant or other legal which he was held.” In meeting the conten process, arrested Mahon in West Virginia, tion that the accused Ker, by virtue of the and by force and against his will conveyed treaty with Peru, acquired by his residence a him out of West Virginia, and delivered him right of asylum, this court said: "There is no to the jailer of Pike county, Kentucky, in language in this treaty, or in any other the courts of which he stood indicted for treaty made by this country on the subject murder. Thereupon the governor of West of extradition, of which we are aware, which Virginia, on behalf of that state, applied to says in terms that a party fleeing from the the district court of the United States for United States to escape punishment for the Kentucky dictrict for a writ of habeas crime becomes thereby entitled to an asy- corpus and his return to the jurisdiction of lum in the country to which he has fled; in West Virginia. This court, after observing deed, the absurdity of such a proposition that the states of the Union were not absowould at once prevent the making of a lutely sovereign, and could not declare war treaty of that kind.

It is idle, or authorize reprisals on other states, and therefore, to claim that, either by express that their ability to prevent the forcible abterms or by implication, there is given to a duction of persons from their territory confugitive from justice in one of these countries sists solely in their power to punish all any right to remain and reside in the other; violations of their criminal laws committed and if the right of asylum means anything, within it, whether by their own citizens or it must mean this. The right of the govern- by citizens of other states, said: “If such ment of Peru voluntarily to give a party in violators have escaped from the jurisdiction Ker's condition an asylum in that country is of the state invaded, their surrender can be quite a different thing from the right in him I secured upon proper demand on the executive of the state to which they have fled., dictment for a criminal offense in one state The surrender of the fugitives in such cases can be turned over to the authorities of anto the state whose laws have been violated other, though abducted from the latter. If is the only aid provided by the laws of the there were any such comity, its enforcement United States for the punishment of depre-would not be a matter within the jurisdicdations and violence committed in one state tion of the courts of the United States. by intruders and lawless bands from another By comity nothing more is meant than that state. The offenses committed by such par-courtesy on the part of one state, by which ties are against the state; and the laws of within her territory the laws of another the United States merely provide the means state are recognized and enforced, or another by which their presence can be secured in state is assisted in the execution of her case they have fled from its justice. No laws. From its nature the courts of the mode is provided by which a person unlaw- United States cannot compel its exercise fully abducted from one state to another can when it is refused; it is admissible only upbe restored to the state from which he was on the consent of the state, and when contaken, if held upon any process of law for sistent with her own interests and policy. offenses against the state to which he has Bank of Augusta v. Earle, 13 Pet. 519, 589, been carried. If not thus held he can, like 10 L. ed. 274, 308; Story, Conil. Laws, any other person wrongfully deprived of his § 30. The only question, therefore, preliberty, obtain his release on habeas corpus. sented for our determination, is whether Whether Congress might not provide for the a person indicted for a felony in one compulsory restoration to the state of par- state, forcibly abducted from another state, ties wrongfully abducted from its territory and brought to the state where he was upon application of the parties, or of the indicted, by parties acting without warrant state, and whether such provision would not or authority of law, is entitled, under the greatly tend to the public peace along the Constitution or laws of the United States, to borders of the several states, are not mat- release from detention under the indictment ters for present consideration. It is suffi- by reason of such forcible and unlawful abcient now that no means for such redress duction.” through the courts of the United States After a review of the authorities, includhave as yet been provided. The abduction ing the case of Ker v. Illinois, above cited, of Mahon by Phillips and his aids was made, the court concluded: “So, in this case, it is as appears from the return of the respondent contended that, because, under the Constito the writ, and from the findings of the tution and laws of the United States, a fugicourt below, without any warrant or au- tive from justice from one state to another thority from the governor of West Virginia. can be surrendered to the state where the It is true that Phillips was appointed by crime was committed, upon proper proceedthe governor of Kentucky as agent of the ings taken, he has the right of asylum in state to receive Mahon upon his surrender the state to which he has fled, unless reon the requisition; but no surrender having moved in conformity with such proceedings, been made, the arrest of Mahon and his and that this right can be enforced in the abduction from the state were lawless and courts of the United States. But the plain

ensible acts, for which Phillips and his answer to this contention is, that the laws aids may justly be punished under the laws of the United States do not recognize any of West Virginia. The process emanating such right of asylum, as is here claimed on from the governor of Kentucky furnished the part of a fugitive from justice in no ground for charging any complicity on any state to which he has fled; nor the part of that state in the wrong done have they, as already stated, made any to the state of West Virginia.” Again: provision for the return of parties who, "It is true, also, that the accused had the by violence and without lawful authorright, while in West Virginia, of insistity, have been abducted from a state. There ing that he should not be surrendered to is, therefore, no authority in the courts of the governor of Kentucky by the governor the United States to act upon any such al. of West Vrginia, except in pursuance of the leged right. In Ker v. Illinois, the court said acts of Congress, and that he was entitled that the question of how far the forcible to release from any arrest in that state not seizure of the defendant in another country, made in accordance with them; but, having and his conveyance by violence, force, or been subsequently arrested in Kentucky un- fraud to this country could be made availder the writs issued on the indictments able to resist trial in the state court for the against him, the question is not as to the offense charged upon him, was one which it validity of the proceeding in West Virginia, did not feel called upon to decide, for in that but as to the legality of his detention in transaction it did not see that the ConstituKentucky. There is no comity between the tion, or laws, or treaties of the United states by which a person held upon an in- States guaranteed to him any protection. So in this case we say that, whatever effects in criminal cases involving the public intermay be given by the state court to the il ests. legal mode in which the defendant was To the above citations we may add Re brought from another state, no right secured Moore, 75 Fed. 821, in which it appeared or under the Constitution or laws of the Unit- was alleged that one accused of crims ed States was violated by his arrest in Ken- against the laws of a state, and in the custucky, and imprisonment there, upon the tody of its authorities for trial, was brought indictments found against him for murder back from another state as a fugitive from in that state.”

justice by means of an extradition warrant These principles determine the present procured by false affidavits. In his applicacase and require an affirmance of the judg- tion to the circuit court of the United States ment of the circuit court. It is true, the for a writ of habeas corpus the petition decision in the Mahon Case was by a divided stated facts and circumstances tending to court, but its authority is none the less con- show that he was not a fugitive from justice. trolling. The principle upon which it rests The application was dismissed. After stathas been several times recognized and re- ing that the executive warrant issued by affirmed by this court, and is no longer to be the surrendering state had performed its questioned. It was held in Cook v. Hart, office, and that the petitioner was not held 146 U. S. 183, 192, 36 L. ed. 934, 939, 13 in virtue of it, the court said: "His imSup. Ct. Rep. 40, that the cases of Ker v. prisonment is not illegal unless his extradiIllinois and Mahon v. Justice established tion makes it so, and an illegal extradition is these propositions: “l. That this court will no greater violation of his rights of person not interfere to relieve persons who have than his forcible abduction. If a forcible been arrested and taken by violence from the abduction from another state and conveyterritory of one state to that of another, ance within the jurisdiction of the court where they are held under process legally is holding him is no objection to his detention sued from the courts of the latter state. 2. and trial for the offense charged, as held in That the question of the applicability of this Mahon v. Justice, 127 U. S. 712, 32 L. ed. doctrine to a particular case is as much 287, 8 Sup. Ct. Rep. 1204, and in Ker v. Illiwithin the province of a state court, as a nois, 119 U. S. 437, 30 L. ed. 421, 7 Sup. Ct. question of common law or of the law of na- Rep. 225, no more is the objection allowed if tions, as it is of the courts of the United the abduction has been accomplished under States;” in Lascelles v. Georgia, 148 U. s. the forms of law. The conclusion is the 537, 543, 37 L. ed. 549, 551, 13 Sup. Ct. Rep. same in each case. The act complained of 687, that it was settled in the Ker and does not relate to the restraint from which Mahon Cases that, “except in the case of a the petitioner seeks to be relieved, but to fugitive surrendered by a foreign govern- the means by which he was brought within ment, there is nothing in the Constitution, the jurisdiction of the court under whose treaties, or laws of the United States which process he is held. It is settled that a party exempts an offender, brought before the is not excused from answering to the state courts of a state for an offense against its whose laws he has violated because violence laws, from trial and punishment, even has been done him

has been done him in bringing him within though brought from another state by un- the state. Moreover, if any injury was done lawful violence, or by abuse of legal proc- in this case in issuing the requisition upon ess;" and in Adams v. New York, 192 u. the state of Washington without grounds S. 585, 596, 48 L. ed. 575, 579, 24 Sup. Ct. therefor, the injury was not to the petitionRep. 372 (the same cases being referred to), er, but to that state whose jurisdiction was that "if a person is brought within the ju- imposed upon by what was done. The United risdiction of one state from another, or from States do not recognize any right of asylum a foreign country, by the unlawful use of in the state where a party charged with a force, which would render the officer liable crime committed in another state is found, to a civil action, or in a criminal proceeding, return of parties who, by violence and with

nor have they made any provision for the because of the forcible abduction, such fact out lawful authority, have been abducted would not prevent the trial of the person thus from a state, and, whatever effect may be abducted in the state wherein he had com-given by a state court to the illegal mode in mitted an offense." See also Re Johnson, which a defendant is brought from another 167 U. S. 120, 127, 42 L. ed. 103, 105, 17 Sup. state,' no right secured under the ConstituCt. Rep. 735, in which the court recognized tion and laws of the United States is viothe principle that when a party in a civil lated by his arrest and imprisonment for suit has, by some trick or device, been crimes committed in the state into which he brought within the jurisdiction of a court, is brought. Mahon v. Justice, 127 U. S. 715, he may have the process served upon him 32 L. ed. 288, 8 Sup. Ct. Rep. 1204." set aside; but that a different rule prevails The principle announced in the Mahon and other cases above cited was not a new one.chievous consequences, involving the person. It has been distinctly recognized in the al safety of individuals within the limits of courts of England and in many states of the the respective states, the remedy is with Union. In Ex parte Scott (1829) 9 Barn. & the lawmaking department of the governC. 446, one accused of crime against the ment. Congress has long been informed by laws of England, and who was in custody for judicial decisions as to the state of the law trial, sought to be discharged upon habeas cor- upon this general subject. pus because she had been improperly appre- In this connection it may be well to say hended in a foreign country. Lord Tenter- that we have not overlooked the allegation den, Ch. J., said: “The question, therefore, that the governor and other officers of Idaho is this: Whether, if a person charged with a well knew at the time the requisition was crime is found in this country, it is the duty made upon the governor of Colorado, that of the court to take care that such a party Pettibone was not in Idaho on December shall be amenable to justice, or whether we 30th, 1905, nor at any time near that date, are to consider the circumstances under and had the purpose in all they did to evade which she was brought here. I thought, and the constitutional and statutory provisions still continue to think, that we cannot in relating to fugitives from justice. To say quire into them. If the act complained of nothing of the impropriety of any such facts were done against the law of the foreign being made the subject of judicial inquiry in country, that country might have vindicat- a Federal court, the issue thus attempted ed its own law. If it gave her a right of

If it gave her a right of to be presented was wholly immaterial. action she may sue upon it.” Some of the Even were it conceded, for the purposes of American cases, to the same general effect, this case, that the governor of Idaho wrong. are cited in Mahon v. Justice, namely: State fully issued his requisition, and that the v. Smith, 1 Bailey, 283, 19 Am. Dec. 679; governor of Colorado erred in honoring it State v. Brewster, 7 Vt. 118; State v. Ross, and in issuing his warrant of arrest, the 21 Iowa, 467. See also Dow's Case, 18 Pa. vital fact remains that Pettibone is held by 37; State v. Kealy, 89 Iowa, 94, 97, 56 N. W. Idaho in actual custody for trial under an 283; Ex parte Barker, 87 Ala. 4, 8, 13 Am. indictment charging him with crime against St. Rep. 17, 6 So. 7; People v. Pratt, 78 Cal. its laws, and he seeks the aid of the circuit 345, 319, 20 Pac. 731; Church, Habeas Cor- court to relieve him from custody, so that pus, § 483, and authorities cited in notes, he may leave that state and thereby defeat and note to Re Fetter, 57 Am. Dec. 389, the prosecution against him without a trial. 400.

In the present case it is not necessary to go It is said that the present case is distin- behind the indictment and inquire as to how guishable from the Mahon Case in the fact it happened that he came within reach of the that the illegal abduction complained of in the process of the Idaho court in which the the latter was by persons who neither acted indictment is pending. And any investigation nor assumed to act under the authority of as to the motives which induced the action the state into the custody of whose authori- taken by the governors of Idaho and Coloties they delivered Mahon; whereas, in this rado would, as already suggested, be imcase, it is alleged that Idaho secured the proper as well as irrelevant to the real quespresence of Pettibone within its limits tion to be now determined. It must be through a conspiracy on the part of its conclusively presumed that those officers governor and other officers. This difference proceeded throughout this affair with no evil in the cases is not, we think, of any conse- purpose and with no other motive than to quence as to the principle involved; for the enforce the law. question now is—and such was the funda- We perceive no error in the action of the mental question in Mahon's Case—whether a Circuit Court, and its final order is affirmed. circuit court of the United States when asked, upon habeas corpus, to discharge a Mr. Justice McKenna, dissenting: person held in actual custody by a state for I am constrained to dissent from the trial in one of its courts under an indictment opinion and judgment of the court. The charging a crime against its laws, can prop- principle announced, as I understand it, is erly take into account the methods whereby that "a circuit court of the United States, the state obtained such custody. That ques. when asked upon habeas corpus, to distion was determined in the negative in the charge a person held in actual custody by a Ker and Mahon Cases. It was there ad- state for trial in one of its courts under an judged that in such a case neither the Con- | indictment charging a crime against its laws, stitution nor laws of the United States en cannot properly take into account the methtitled the person so held to be discharged ods whereby the state obtained such cusfrom custody and allowed to depart from the tody.” In other words, and to illuminate the state.

If, as suggested, the application of principle by the light of the facts in this these principles may be attended by mis- case (facts, I mean, as alleged, and which

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